Juanita and Emmanuel Kendricks - Page 15

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          have an “adequate” opportunity to challenge the IRS’s proof of              
          claim, because they did not have access to records that had been            
          seized by the IRS during its criminal investigation of Mrs.                 
          Kendricks, and never returned to them, is to no avail.  With                
          respect to the burden of proof in connection with tax claims in             
          bankruptcy cases, the rule is that, in the absence of                       
          modification expressed in the Bankruptcy Code, the burden of                
          proof with respect to a tax claim in bankruptcy remains where the           
          substantive tax law puts it.  Raleigh v. Ill. Dept. of Revenue,             
          530 U.S. 15, 26 (2000).  The Bankruptcy Code makes no provision             
          for altering the burden of proof with respect to a tax claim, id.           
          at 22, and, in general, where the Commissioner has determined a             
          deficiency in tax, the taxpayer bears the burden of proving facts           
          that show that determination to be incorrect, see Rule 142.                 
          Welch v. Helvering, 290 U.S. 111, 115 (1933); Feldman v.                    
          Commissioner, 20 F.3d 1128, 1132 (11th Cir. 1994), affg. T.C.               
          Memo. 1990-532.  Under the Federal Rules of Evidence, “the                  
          inability to produce a record which is unintentionally lost,                

          suit) or the bankruptcy court (where the action is dismissed                
          without resolving the IRS’s claims).  See Aguirre v.                        
          Commissioner, 117 T.C. 324, 327 (2001).  But cf. Montgomery v.              
          Commissioner, 122 T.C. 1, 9 (2004) (sec. 6330(c)(2)(B) permitted            
          taxpayers to challenge the existence or amount of the tax                   
          liability reported on their original income tax return because              
          they had not received a notice of deficiency for the year in                
          question and they had not otherwise had an opportunity to dispute           
          the tax liability in question).                                             

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